ELR Citation: ELR 20481
No(s). 79-1144 (D.D.C. Oct 1, 1984)

The court remands in part the Office of Surface Mining's revised Surface Mining Control and Reclamation Act (SMCRA) regulations dealing with subsidence, prime farmland, roads, alluvial valley floors, stream buffer zones, excess spoil, performance bonds, backfilling and grading, topsoil, and fish and wildlife. As a preliminary matter, the court holds that the citizen and environmental plaintiffs have standing and that their challenges to unused delegations of regulatory power are ripe. Turning to substantive issues, the court deals first with challenges to the subsidence regulations. Although SMCRA expressly deals only with prevention of subsidence, the regulations requiring remedy of subsidence are consistent with the language of the statute and congressional intent; do not unlawfully interfere with private, state law remedies for subsidence damages; and, as yet, have not worked a taking of property. The court holds that the regulation requiring underground miners to give notice to surface owners and occupants is consistent with the Act and a reasonable exercise of agency discretion. The court remands he regulation that allows state law to govern redress of damage to surface structures because the final rule was radically different from the proposed rule and so was promulgated without adequate notice or comment. Reserving judgment on the water supply protections in the hydrology regulations, the court holds that the water supply protections in the subsidence regulations are reasonable and need not require replacement of water where protection cannot be assured. The new regulations do not delete a requirement that underground miners supply structural information, since that requirement was not a part of the previous regulations. The court reserves judgment on whether the regulations must require pre-subsidence surveys and monitoring, but advises the agency to receive comments on the question on remand.

The court then considers challenges to the prime farmland regulations. The requirement that miners grow crops on restored lands to prove that restoration has worked, rather than relying on soil surveys, is consistent with the statute. The regulation requiring pre- and post-reclamation soil surveys in addition to the cropping is also consistent with the statute and reasonable. The court strikes down a regulation allowing reclaimers to create non-farm-related water bodies as inconsistent with the Act's post-mining use restrictions. The regulatory exception to those restrictions for certain mining activities affecting a minimal amount of land must be remanded, for the agency irrationally ignored distinctions between surface and underground mining activities and failed to provide sufficiently specific limits to the exception. Finally, the court holds that the soil compaction standards, which the Soil Conservation Service is to prepare, must be promulgated with notice and comment.

Turning to the road regulations, the court first holds that the regulation requiring underground miners to reclaim roads is required by the Act and therefore reasonable. However, the court remands the road regulations for lack of notice and comment, holding that the criteria used in the road classification section in the final rule were not even hinted at in the proposed rule.

Moving on to the regulations governing treatment of alluvial valley floors (AVFs), the court declines to hold the regulatory definition of subirrigation overbroad, noting that the definition contains sufficient limitations to prevent it from being extended beyond what Congress intended. However, the regulatory definition equating "farming" and "agricultural activities" as they relate to AVFs is inconsistent with other regulations and the presumption that Congress would have used a single term if it intended a single meaning. Also, the court rules that the SMCRA AVF exemptions for undeveloped rangeland and farming on small acreages do not apply to the SMCRA requirements for protecting hydrologic balance. Therefore, the regulations correctly set hydrological requirements for undeveloped rangeland and farms of small acreage. The court also holds that the regulations protect water systems that supply AVFs outside the permit area. The regulations are not flawed for allowing the agency to deny coverage under the AVF exemptions without public participation, since the public has opportunity to challenge any provision of a permit before it is finally approved. Neither are the regulations flawed for measuring water quality and quantity impacts solely in terms of damage to agricultural activities. The agency failed, however, to explain why it dropped the requirement that permit applicants supply specified information on essential hydrologic functions. Finally, the court upholds that part of the regulation defining the extent of the small acreage farming exception as not arbitrary or capricious. The court next upholds he agency's decision to change the stream buffer zone requirement from one requiring buffers around streams with a biological community to one requiring buffers around perennial or intermittent streams. The agency gave a rational explanation for the change.

Turning to the excess spoil regulations, the court holds that the new nondegradability requirements for excess spoil are consonant with the Act, rationally justified, and adequately described. Also, the definition of excess spoil does not create a loophole to the requirement that spoil be used to return an area to its approximate original contours.

The court then addresses challenges to the bonding requirements. The court finds it reasonable that the regulations do not require an initial bond large enough to cover subsidence damages, since no permit would be granted if subsidence was initially expected. However, the regulations that allow posting of a bond for less than the entire area to be mined within the permit term contradict the statute. Similarly flawed are the regulations allowing miners to post separate bonds to guarantee specific phases of reclamation within a single permit term. The court holds that the regulations governing bond release hearings need not require adjudicatory procedures.

Examining challenges to the backfilling and grading regulations, the court remands the revised regulations governing terracing because they provide no guidance on when terracing might violate the statutory requirement that the pre-mining surface configuration be restored. Similarly, the court holds that the regulations must be revised to provide guidance on whether reclamation meets the statutory requirement that it be as contemporaneous as practicable with the mining operation and to provide guidance on when the exceptions to the original contour requirement for areas of thin or thick overburden apply.

Addressing challenges to the topsoil regulations, the court holds that the regulation allowing reclaimers not to put topsoil on certain steep embankments is reasonable and properly implement the requirements of the Act. The court also upholds as reasonable the regulations allowing long-term storage of topsoil on a "host" site.

Turning at the last to challenges to the regulations protecting fish and wildlife, the court first holds that an earlier court of appeals decision had reinstated regulations requiring operators to supply information on fish and wildlife resources. Though the new regulations do not impose any such requirement, the subject was expressly excluded from the rulemaking, so no rationale was provided for abandoning the requirement. The requirement must therefore still be in effect. The court also holds that the agency failed to give cogent reasons for deleting a requirement that toxic ponds be fenced. Ruling on three endangered species challenges, the court holds (1) that amending the regulations to ignore state-listed species violated SMCRA, (2) that deletion of a requirement that operators report the presence of critical habitat was rational since the permit application process adequately protects critical habitat, and (3) that prohibiting only operations that will jeopardize species rather than ones that are likely to jeopardize species violates the directives of the Endangered Species Act. The court rejects challenges to new, less specific regulations on protecting raptors from electrocution on powerlines, finding that the agency gave adequate explanation for the change, was not required to specifically address protection of non-raptors, did not write an overly broad exception into the regulation. Finally, the court holds that the agency's relaxation of bans on construction of migration barriers and use of persistent pesticides were rational exercises of discretion.

[Related cases appear at 9 ELR 20720; 10 ELR 20113, 20208, 20526; 11 ELR 20941; 14 ELR 20617; and 15 ELR 20494.]

Counsel are listed at 14 ELR 20617.